Sault Ste. Marie Tribe wins major victory in homelands litigation

Friday, March 6, 2020  

The Sault Ste. Marie Tribe of Chippewa Indians has scored a major court victory against the Trump administration, whose officials have been hostile to land acquisitions for reasons that even a federal judge found baffling.

In a 53-page decision, Judge Trevor N. McFadden said the Bureau of Indian Affairs was wrong to deny the tribe's fee-to-trust applications for two sites in Michigan. Congress vested the tribe -- not the federal government -- with the authority to decide how and where to reclaim its homelands, the ruling stated.

"This case is about who decides whether an Indian tribe acquired land for a permissible purpose—the federal government or tribal leaders, McFadden, who was appointed to the bench by President Donald Trump, wrote on Thursday. "Finding that Congress vested tribal leaders with that decision here, the court sets aside the government’s refusal to take land into trust for the Sault Ste. Marie Tribe of Chippewa Indians."

The law at the heart of the case is Michigan Indian Land Claims Settlement Act. In 1997, Congress created a fund with which the tribe could acquire lands to replace those which were essentially stolen by the United States in the 1800s.

"The United States had paid the Chippewa bands $1.8 million for land worth $12.1 million," McFadden said in explaining how the Sault Tribe was mistreated by the federal government during negotiations of an 1836 treaty.

In correcting what the Indian Claims Commission called "unconscionable," Congress put the tribe in control of its own destiny, McFadden noted. "The tribe’s board of directors is the 'trustee' of this fund and 'shall administer the fund,'" the decision stated.

Further, once the tribe decides which lands to acquire with settlement funds, the BIA "shall" place those lands in trust, the decision read. The acquisition is "mandatory," McFadden said of the obligations imposed on the Secretary of the Interior by the 1997 law.

"By its plain language, this provision imposes a mandatory duty on the Secretary to take land into trust on just one condition: that the tribe acquired the land 'using amounts from interest or other income' of the fund," the ruling read.

Despite siding with the tribe, however, McFadden said he would not order the Trump administration to place the property at issue in trust. He instead directed the BIA to examine whether the tribe acquired the lands with settlement funds -- something that never happened because officials at the Department of the Interior took a different approach to the issue for reasons that remain unexplained.

"This is a situation in which the agency mistakenly thought it was unnecessary to decide the relevant issue," McFadden concluded. "Any additional delay will be at its own peril."

The tribe submitted the land-into-trust applications for a site in Lansing and another in Sibley in 2014, during the Barack Obama era. The BIA never gave the tribe an answer -- until the Trump team showed up in 2017, telling the tribe that year that the land was too far from the reservation to be placed in trust.

"Here, the distances are even greater - the tribe's headquarters is approximately 260 miles (287 miles by road) from the Lansing parcels, and approximately 305 miles (356 miles by road) from the Sibley parcel," Associate Deputy Secretary Jim Cason wrote in the July 2017 decision letter.

Nearly three years later, the lengthy process has taken a toll on the tribe's financial dreams. The Lansing parcel -- where a lucrative gaming facility was once planned -- is in the process of being reconveyed back to the city, according to a notice filed in court in January, as a result of the long wait for a favorable decision from Washington.

The tribe was the first victim of a disjointed homelands policy that emerged at the dawn of the Trump era. Despite court rulings to the contrary, the new administration told Indian Country that uncertainties in the process required the establishment of new regulations governing land acquisitions.

"To my mind, we are trying to streamline the process," John Tahsuda, a citizen of the Kiowa Tribe who previously served as the Principal Deputy Assistant Secretary for Indian Affairs, told tribes during a contentious meeting later in 2017.

Tribes complained that the proposed regulations did the opposite. They argued that it would make it nearly impossible for them to acquire lands away from existing reservations despite the existence of laws like the Michigan Indian Land Claims Settlement Act that were intended to create opportunities instead of hurdles.

Following the complaints, the Trump administration declined to move forward with the changes to the Fee-to-Trust Regulations (25 CFR 151). Secretary of the Interior David Bernhardt announced he was pulling the plug a year ago.

“I have no interest in modifying our 151 regulations unless you want them changed so we are not going to go forward with that matter," Bernhardt told the National Congress of American Indians, where Sault Tribe Chairperson Aaron Payment serves as Vice President, shortly before being confirmed as the leader, of the Department of the Interior, the federal agency with the most responsibilities in Indian Country.

Tribes, however, have detected yet another swing of the policy pendulum. During NCAi's winter session last month, they expressed alarms about the Trump administration's efforts to undo a legal opinion that addressed uncertainties in the homelands process following the devastating U.S. Supreme Court decision in Carcieri v. Salazar.

In response to blistering criticism at the meeting in D.C., Assistant Secretary for Indian Affairs Tara Sweeney all but confirmed that the Office of the Solicitor at Interior, whose leader was formally installed just a few months ago, was the one calling the shots on key Indian policy issues such as the fee-to-trust process.

Chairman Aaron Payment of the Sault Ste. Marie Tribe of Chippewa Indians and Vice President of the National Congress of American Indians: “We survived Andrew Jackson so we can survive anything.” #StandWithMashpee pic.twitter.com/mfBnfsZyDw

— indianz.com (@indianz) November 14, 2018

"I have to tell you that the Solicitor's Office sets the position for the department," Sweeney told tribal leaders, essentially abdicating her authority to the legal arm of her agency. "My role is one of advocacy, and advocacy for clarity and decision-making."

"In my discussions with the Solicitor, I continue to advocate that Indian Country deserves to have transparency in the process," Sweeney continued. "Indian Country deserves to have decisions rendered in a timely manner and that there's clarity in how we make decisions."

The response wasn't satisfactory for tribal leaders.

“We didn't quite get answers," NCAI President Fawn Sharp said a day later . "We are committed at the National Congress of American Indians to ensure that those questions do no go unanswered."

With the doubts lingering, the Department of the Interior has undergone some shifts in power. Following Tara Sweeney's arrival in D.C. in 2018, John Tahsuda left the Office of the Assistant Secretary for Indian Affairs. He now works as a policy adviser to Secretary David Bernhardt.

The Principal Deputy Assistant Secretary for Indian Affairs position remains unfilled to this day, leaving Sweeney without a key member of her leadership team. Amid the void, Washington insiders have noted that the Office of the Solicitor -- the same entity that asserted control over tribal homelands policy in the lower 48 and in Alaska -- has detailed some of its employees to her office.

"The Devil's at her doorstep," one insider told Indianz.Com.

As for Jim Cason, he continues to hold the title of Associate Deputy Secretary. But he no longer plays a significant role in Indian policy, having stepped back in late 2018, shortly after Sweeney was confirmed as the Assistant Secretary for Indian Affairs.

The Indian Affairs portfolio is now primarily in the hands of Gregg Renkes, a former attorney general of Alaska who serves as a policy adviser to Secretary Bernhardt, according to employees at Interior and tribal advocates who work closely with the department.

WOW. A day after hailing the "historic" addition of an Alaska Native to the team, the Trump administration has withdrawn -- pending "further review" -- an Obama-era legal opinion that affirmed the rights of tribes in Alaska to restore their homelands https://t.co/q89IVhGRpi pic.twitter.com/1i4KrcDMRo

— indianz.com (@indianz) June 29, 2018

The presence of Renkes is notable, as Alaska has long opposed the ability of tribes in the state to benefit from the fee-to-trust process at the BIA.

The Trump administration -- without prior consultation or notice -- put a hold on all land-into-trust applications in Alaska in the summer of 2018, before Sweeney had a chance to be installed in her position, depriving her of a say in the matter. The hold has yet to be lifted.

"The land-into-trust issue with respect to Alaska is still under review," Sweeney said of a process that was initiated by the legal arm of Interior more than 18 months ago, to no apparent conclusion. "I don't have any other information to provide you at this time."

"I wish I could give you a different answer but you know that I will always give you an answer," Sweeney said at NCAI's winter session on February 11. "It may not be one that we agree on -- but you're going to get an answer from me."

Turtle Talk has posted documents from the tribal homelands case, Sault Ste. Marie Tribe of Chippewa Indians v. Bernhardt.

'Do your job': Tribes slam Trump administration on sovereignty and homelands (February 12, 2020)